eDiscovery Daily Blog

• June 13, 2012

 

Last week, the Pennsylvania Supreme Court adopted amendments to the rules on how discovery of electronically stored information is handled in the state.  However, the chairwoman of Pennsylvania’s Civil Procedural Rules Committee, Diane W. Perer, has expressly rejected federal law on the subject in her explanatory comment stating that, despite the adoption of the term “electronically stored information,” “there is no intent to incorporate federal jurisprudence surrounding the discovery of electronically stored information.”  Instead, “[t]he treatment of such issues is to be determined by traditional principles of proportionality under Pennsylvania law”.

The explanatory comment also discusses the “Proportionality Standard” and its application to electronic discovery, as well as “Tools for Addressing Electronically Stored Information”.  When it comes to proportionality, Pennsylvania courts are required to consider:

“(i) the nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake;

(ii) the relevance of electronically stored information and its importance to the court’s adjudication in the given case;

(iii) the cost, burden, and delay that may be imposed on the parties to deal with electronically stored information;

(iv) the ease of producing electronically stored information and whether substantially similar information is available with less burden; and

(v) any other factors relevant under the circumstances.”

When it comes to tools for addressing ESI, the comment stated that "[p]arties and courts may consider tools such as electronic searching, sampling, cost sharing and non-waiver agreements to fairly allocate discovery burdens and costs. When using non-waiver agreements, parties may wish to incorporate those agreements into court orders to maximize protection vis-à-vis third parties."

The amendments affect rules 4009.1, 4009.11, 4009.12, 4009.21, 4009.23, and 4011.  For example, in Rule 4009.1, the court added the phrase "electronically stored information" to the "production of documents and things" a party may request. It also added a subsection that a party requesting ESI "may specify the format in which it is to be produced and a responding party or person not a party may object."  If no format is requested, the rule states the ESI can be produced in the form in which it is typically maintained.

In some cases, the amendments affect only the notes, not the substance of the rule itself.  For example, in a note to Rule 4009.11 regarding the request for production of documents and things, the court said a request for ESI should be "as specific as possible."

So, what do you think?  Was it necessary for Pennsylvania to distance themselves from the Federal rules, or was it a good idea?  Please share any comments you might have or if you’d like to know more about a particular topic.

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